Florida Unemployment Claim Denied

Document Sample
Florida Unemployment Claim Denied Powered By Docstoc
					              IN THE SUPREME COURT OF FLORIDA

                          Case No.: SC03-1410

              Nadine G. Mendelsohn, Appellant/Employee

                                    vs.

         Florida Unemployment Appeals Commission, Appellee



   Appeal from District Court of Appeal of The First District Of Florida
              Case No. 1DO-377 (Fla. App. 06/26/2003)



APPELLANT’S AMENDED BRIEF ON DISCRETIONARY JURISDICTION
                  UNDER RULE 9.120 (d)



                                             Nadine G. Mendelsohn, Pro Se
                                             1404 Louise Drive SE
                                             Jacksonville, AL 36265
                                             (256) 782-3262
                                        TABLE OF CONTENTS

                                                                                 Page

Table of Citations .......................................................................... iii-v

Preliminary Statement ................................................................... 1

Statement of Case and Facts ............................................................... 1-3

Summary of Argument ................................................................... 3

Jurisdictional Arguments ............................................................... 4-9

    1. Disparity amoung the District Courts of Appeal and within the First DCA
       exists in relation to rules regarding evidence presented in support of the
       claim of timeliness of filing under the concept of presumption of receipt, per
       Rule 9.030 (a) (2) (A) (iv). ......................................................... 4-8

    2. A sworn denial of receipt of a pleading or notice creates a question of fact
       for the trial court as to whether the presumption of receipt is overcome.
       Other District Courts of Appeal have ruled that when there is no denial of
       receipt the presumption of receipt must be accepted, pre Rule 9.030 (a) (2)
       (A) (iv). .................................................................................... 8-9

Conclusion ........................................................................................ 9

Certificate of Service ........................................................................ 9

Certificate of Compliance .................................................................. 9




                                                        ii
TABLE OF CITATIONS

CASES                                                                                         PAGES

Aboudrahh v. Tartus Group, Inc.,
795 So.2d 79 (Fla. 5th DCA 2000) ........................................................ 8

Abrams v. Paul,
453 So.2d 826 (Fla. 1st DCA 1984) ....................................................... 4,8

Allstate Insurance Co. v. Eckert,
472 So.2d 807, 809 (Fla. 4th DCA 1985) ............................................... 4

American Paging of Texas, Inc. v. El Paso Paging, Inc.,
9 S.W.3d 237, 240 (Tex.App.1999) ...................................................... 6

Bacon v. Florida Unemployment Appeals Commission and
Dade County School Board,
2001.FL0004795 http://www.versuslaw.com ......................................... 5

Berwick v. Prudential Prop. & Cas. Ins. Co.,
436 So.2d 239 (Fla. 3d DCA 1983) ...................................................... 4

Brigham v. State,
769 So.2d 1100 (Fla, 1st DCA 2000) ..................................................... 7

Brown v. Giffen Industries, Inc.
281 So.2d 897 (Fla. 1973) ................................................................... 4

Camerota v. Kaufman and Data Technical Services,
666 So.2d 1042 (1996) ........................................................................ 4

Emmer v. Brucato,
No. 5D01-1668 (Fla. App. 04/12/2002) ................................................. 8

Espanioly v. Florida Unemployment Appeals Commission,
768 So.2d 1230 (2000) ........................................................................ 5

Falkner v. Amerifirst Federal Savings and Loan Association,
489 So.2d 758 (Fla. 3d DCA 1986) ...................................................... 9


                                                     iii
Hairopoulos,
118 F.3d 1240, 1244 (8th Cir. 1997) ..................................................... 5

Hammett v. Hammett,
510 So.2d 632 (Fla. 3d DCA 1987) ...................................................... 8

Kennell vs. Gates,
215 F. 3d 825, 829 (8th Cir., 2000) ....................................................... 6

Knabb v. Morris,
492 So.2d 839, 841 (Fla. 5th DCA 1986) ............................................... 8

Miller v. State,
838 So.2d 667 (Fla. 1st DCA 2003) ...................................................... 7

Moses v. Bystrom,
489 So.2d 834 (1986) .......................................................................... 4

Perenzuela v. Florida Unemployment Appeals Commission,
779 So.2d 670 (2001) .......................................................................... 5

Service Fire Insurance Company New York v. Robert Markey,
83 So.2d 855 (Fla. 1955, Florida Supreme Court En Banc) ..................... 7

Slomowitz v. Walker,
429 So.2d 797, 799 (Fla. 4th DCA 1983) ............................................... 8

SSI Med. Serv., Inc. v. State
146 N.J. 614, 685 A.2d 1, 5-6 &n.1 (1996) ........................................... 6

Telf Corp. v. Gomez,
671 So.2d 818 (Fla. 3rd DCA 1996) ..................................................... 8

Titus Bros. Roofing Co. v. Blank,
542 So.2d 439 (Fla. 5th DCA 1989) ..................................................... 8

Torrey v. Torrey,
4D01-3074 (Fla. App. 05/08/2002)
2002.FL.0001759 http://www.versuslaw.com ........................................ 4



                                                     iv
United States v. Galiczynski,
44 F.Supp.2d 707, 714 (E.D.Pa.) ......................................................... 6

Wagner Tractor, Inc. v. Shields,
381 F.2d 441, 446 (9th Cir.1967) ......................................................... 6




                                                   v
                               Preliminary Statement

The appellant, Nadine G. Mendelsohn, is referred to as Claimant /Employee. The

Florida Unemployment Appeals Commission is referred to as UAC. Reference to

the record on appeal is as follows: R- followed by the page number. Reference to

the appendix is as follows: A- followed by the page number.

                            Statement of Case and Facts

      On April 3, 2001, Claimant filed for Unemployment Benefits. On May 11,

2001, the claim was denied by the Agency for Workforce Innovation. On May 24,

2001, Appellant requested reconsideration of the determinations of May 11, 2001.

Appellant received a Notice of Unemployment Compensation Hearing scheduled

for June 21, 2001. On June 14, 2001, Claimant faxed a request to reschedule the

hearing. The Agency for Workforce Innovation denied the request (Docket

Number: 2001-20199U). On June 15, 2001, Claimant faxed a second request to

reschedule the hearing. On June 18, 2001, the UAC denied the Claimant’s second

request to reschedule the hearing but granted permission for the claimant to attend

by telephone. The case was dismissed due to claimant’s failure to prosecute.

(Docket Number 2001-20199U). The decision of the UAC was rescinded on June

28, 2001, with a finding in the claimant’s favor for having good cause to not

appear. An in-person hearing was held on July 24, 2001 at the UAC Office in Ft.

Lauderdale to rule on the denial of unemployment benefits. The Appeals Referee



                                           1
partially reversed the decision of May 11, 2001, and found for the claimant.

(Docket Number 2001-25523U). On August 20, 2001, claimant appeared before

the Appeals Referee (Docket Number 2001-29699U). The hearing resulted in a

reversal of the decision of May 11, 2001, with a finding in the claimant’s favor

(Docket Number 2001-29699U). On September 4, 2001, claimant received yet

another challenge to her unemployment claim (Notice of Determination, R.1).

Appellant filed a Notice of Appeal ®. 2) on September 21, 2001. On October 5,

2001, Appellant received a Notice of Telephone Hearing, R. 5) scheduled for

October 15, 2001. Claimant was unable to appear for the October 15, 2001, hearing

and received a Notice of Dismissal of Unemployment Compensation Appeal,

Docket Number 2001-40095U, dated October 16, 2001.

      On November 2, 2001, claimant filed Claimant’s Request for appeal of

Decision of October 16, 2001, by facsimile transmission to the UAC. The UAC

represented to the employee that the request for appeal was not timely and mailed a

Notice of Docketing of a Request for Review of the Referee’s decision in the

above noted case, and then claimant was mailed an Order of UAC Referee

Decision 01-4009SU dated December 11, 2001, remanding the case for the taking

of evidence concerning the timeliness of the Claimant’s Appeal of November 2,

2001. ®.12). On January 4, 2001 ®. 20-41), a telephone hearing was held before

the Appeal Referee (Docket Number 2001-40095U) on the question of the



                                           2
timeliness of filing of the appeal of the decision of October 16, 2001. Claimant

testified under oath that the fax call of Nov. 2, 2000, was completed and followed

an established procedure. The UAC issued an Order Denying Claimant’s Appeal

on January 14, 2002 ®. 42-44).

       A timely Notice of Appeal to the First District Court of Appeal was filed by

the claimant on January 18, 2002 ®. 45), and is an appeal of the January 14, 2002,

determination by the UAC that the Claimant’s Notice of Appeal of the October 16,

2001, Order was not timely filed. The First District Court of Appeal issued a

decision on June 26, 2002, (A.1-8) denying the Claimant’s Appeal of the

Unemployment Appeals Commission denial of timely filing.

       The Claimant filed a Notice to Invoke Discretionary Jurisdiction with the

Supreme Court of Florida on August 12, 2003 and received Acknowledgment of

New Case, August 19, 2003.

                                Summary of Argument

       The jurisdictional issue is that the appeal courts exhibit variation in what

they consider to constitute clear substantial evidence for proof of timely filing to

the UAC and that in the absence of evidence to substantiate lack of receipt, the

presumption of receipt must stand. The arguments herein provide sufficient basis

for the Supreme Court of Florida to hear the case based on disparity in rulings

among the courts.



                                            3
                                Jurisdictional Arguments

      1.    Disparity amoung the District Courts of Appeal and within the First

DCA exists, per Rule 9.030 (a) (2) (A) (iv), in relation to rules regarding evidence

in support of the claim of timeliness of filing under the concept of presumption of

receipt, per the following cases: Torrey v. Torrey, 4D01-3074 (Fla. App.

05/08/2002), “when documents are mailed . . . there is a presumption of receipt.”

Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA 1996): “When documents

are mailed to an addressee, there is a presumption of receipt.

Allstate Insurance Co. v. Eckert, 472 So.2d 807, 809 (Fla. 4th DCA 1985):

“when something is mailed ...it is presumed ...that the mail was received by the
addressee.”

Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973):

“To expect evidence as to the individual, actual act of mailing or as to receipt of
the mailed item would be “totally unreasonable.”

Id. at 900. Id. at 1045.” Case law from the 4th DCA states that in the absence of

evidence to the contrary, the presumption of receipt stands. In the instant case the

1st DCA disallowed the presumption of receipt in direct conflict with the ruling

of the 4th DCA. The 3rd DCA in Moses v. Bystrom, 489 So.2d 834 (1986).

“It is well-settled that correspondence ...properly addressed and mailed constitutes
prima facie evidence--or...a “presumption”--that it was received by the addressee.
Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973); Abrams v. Paul, 453
So.2d 826 (Fla. 1st DCA 1984); Berwick v. Prudential Property and Casualty
Insurance Co., 436 So.2d 239 (Fla. 3rd DCA 1983). In accordance with this rule,
appropriate mailing alone will support a finding that the item was received, even in


                                            4
the face of evidence, such as that produced by the county below.”

In Espanioly v. Florida Unemployment Appeals Commission, 768 So.2d 1230

(2000), the 3rd DCA ruled Espanioly’s submission of evidence of her October 14,

1999, facsimile confirmation was sufficient to establish that her appeal was timely.

In the instant case the 1st DCA was at variance with the 3rd DCA. In Perenzuela

v. Florida Unemployment Appeals Commission, 779 So.2d 670 (2001), the 3rd

DCA reversed the UAC ruling that dismissed her appeal as untimely:

“Because there is competent record evidence to support claimant’s argument that
her appeal was timely filed, we reverse and remand for a determination of the
merits of her claim.”

The 1st DCA did not use the same standard used by the 3rd DCA in taking

account of the record. In Bacon v. Florida Unemployment Appeals Commission

and Dade County School Board, 2001,FL;0004795 <http://www.versuslaw.com>,

the Third DCA opined:

“After that filing whatever internal machinations, or demands on Bacon,
resulted in the alteration (on the application) of the filing date are irrelevant”

(emphasis added). In the instant case, the 1st DCA, in contrast to the 3rd DCA,

affirmed the primacy of agency procedures that were beyond the control of the

appellant/employee. The 8th Federal Circuit court of Appeal found in Hairopoulos,



                                           5
118 F.3d 1240, 1244 (8th Cir.1997) reaffirmed the presumption of receipt when

there is no dispute over the address. “A letter properly addressed and mailed is

presumed to have been delivered to the addressee.” In the instant case, the 1st DCA

ignored the fact that there was no contention by the UAC that the fax number used

by the appellant/employee was incorrect or improper. The 9th Federal Circuit

Court of Appeals, in Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 446 (9th

Cir.1967) stated that

“There is a presumption of receipt after proper dispatch of a telegram analogous to
letters properly mailed.” We see no principled reason why a jury would not be able
to make the same inference regarding other forms of communication--such as
facsimiles, electronic mail, and in-house computer message systems--provided they
are accepted as generally reliable and that the particular message is properly
dispatched. “

This principle was upheld in United States v. Galiczynski, 44 F.Supp.2d 707, 714

(E.D.Pa.); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S. W. 3d 237,

240 (Tex.App.1999), SSI Med. Serv., Inc. v. State 146 N.J. 614, 685 A.2d 1, 5-6 &

n.1 (1996). In the above cases the Courts have affirmed presumption of receipt

based on evidence in the form of telephone bills or fax transmission records. The

1st DCA, in contrast to the other courts above, did not tender proper weight to

evidence corroborating a viable presumption of receipt. In the case of Kennell vs.



                                           6
Gates, 215 F. 3d 825, 829 (8th Cir., 2000), the 8th Circuit Court makes the point

that: “In this case... the supervisor ...was able to testify that the message had been

properly sent ...by looking at a copy of the message. The 8th and 9th Circuit

Courts provided rulings in opposition to the 1st DCA. The 8th Circuit Court

ruled that testimony by one familiar with the mechanics of electronic messages is

enough to accept the presumption of receipt, while the 1st DCA ruled that despite

unshakeable testimony from the employee regarding the familiarity with her

electronic equipment there was no presumption of receipt affirmed. In Miller v.

State, 838 So.2d 667, (Fla. 1st DCA 2003)

“we conclude that Miller’s sworn allegations in this regard and the corroborative
documentation he has provided establish an independent basis for granting the
relief he seeks. See Brigham v. State, 769 So.2d 1100 (Fla, 1st DCA 2000)”

in direct conflict with the ruling in the instant case. Thus disparity occurs within

the 1st DCA. The Florida Supreme Court stated in Service Fire Insurance

Company New York v. Robert Markey, 83 So.2d 855 (Fla. 1955, Supreme Court of

Florida En Banc) “Convincing evidence of mailing is not rebutted merely by

evidence that the notice was not actually received.” The 1st DCA is in contention

with no less than the Florida Supreme Court.

      The decision of the 1st DCA flies in the face of the case law quoted above,


                                            7
case law from other Federal Circuits, other Districts within the State of Florida,

case law from the Florida Supreme Court, and even case law within the 1st DCA.

      2.    A sworn denial of receipt of a pleading or notice creates a question of

fact for the trial court as to whether the presumption of receipt is overcome. Other

District Courts of Appeal have ruled that when there is no denial of receipt the

presumption of receipt must be accepted per Rule 9.030 (a) (2) (A) (iv).

      In the instant case the 1st DCA was acting as the trial court and finder of

fact. The UAC never claimed that the employee’s Notice of Appeal was not

received. Other District Courts of Appeal have ruled that when there is no denial

of receipt the presumption of receipt must be accepted: The 5th DCA, in Emmer v.

Brucato, No. 5D01-1668 (Fla. App. 04/12/2002),

       “the burden of proving the validity of service of process is on ..., the parties
seeking to invoke the jurisdiction of the court, Knabb v. Morris, 492 So.2d 839,
841 (Fla. 5th DCA 1986)....Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3rd DCA
1996). Whether that presumption is overcome is a factual one for the trial court.
Titus Bros. Roofing Co. v. Blank, 542 So.2d 439 (Fla. 5th DCA 1989). The
defaulting party must establish by clear and convincing evidence that service was
invalid. (emphasis added). Aboudrahh v. Tartus Group, Inc., 795 So.2d 79 (Fla.
5th DCA 2000). A defendant cannot impeach a summons by simply denying
service, but must present clear and convincing evidence to corroborate his denial of
service. Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983).”

      Hammett v. Hammett, 510 So.2d 632 (Fla. 3d DCA 1987); and Abrams v.



                                            8
Paul, 453 So.2d 826 (Fla. 1st DCA 1984), the 3rd and 1st DCA’s held that: “Only

if the evidence is uncontroverted that the pleading ...was ...not received must the

court grant the motion to vacate. See Falkner v. Amerifirst Federal Savings and

Loan Association, 489 So.2d 758 (Fla. 3d DCA 1986).

                                   CONCLUSION

       The Appellant/Employee asks for the Supreme Court of Florida to invoke

Discretionary Jurisdiction under Rule 9.030 (a) (2) (A) (iv) and entertain the case

on its merits.

                           CERTIFICATE OF SERVICE

I CERTIFY THAT A COPY OF THIS DOCUMENT WAS MAILED TO Gerry
Atkinson-Hazelton , Florida Unemployment Appeals Commission, Suite 300
Webster Bldg., 2671 Executive Center Circle West, Tallahassee, FL 32399-0681
and Initial Staffing Services of California, Inc., Attn: The Frick Company, PO Box
66864, St. Louis, MO 63166-6864, this 3rd day of November, 2003.
       _________________________
       Nadine G. Mendelsohn, Pro Se
       1404 Louise Drive SE Jacksonville, Alabama 36265 (256) 782-3262

                        CERTIFICATE OF COMPLIANCE

I CERTIFY THAT THIS AMENDED JURISDICTIONAL BRIEF is in
compliance with Rule 9.210 (a) (2) for computer generated briefs. The font used is
Times New Roman 14-point.

_________________________
Nadine G. Mendelsohn, Pro Se


                                           9
           IN THE SUPREME COURT OF FLORIDA


           Nadine G. Mendelsohn, Appellant/Employee

                                 vs.

      Florida Unemployment Appeals Commission, Appellee



Appeal from District Court of Appeal of The First District Of Florida
           Case No. 1DO-377 (Fla. App. 06/26/2003)



     AMENDED APPENDIX OF APPELLANT/EMPLOYEE

                       Case No.: SC03-1410




                                          Nadine G. Mendelsohn, Pro Se
                                          1404 Louise Drive SE
                                          Jacksonville, AL 36265
                                          (256) 782-3262
                                     TABLE OF CONTENTS

                                             APPENDIX

Lower Tribunal Opinion
issued June 26, 2003 ...................................................... 1-8
                          CERTIFICATE OF SERVICE


    I CERTIFY THAT A COPY OF THIS DOCUMENT WAS MAILED TO
Gerry Atkinson-Hazelton , Florida Unemployment Appeals Commission, Suite
300 Webster Bldg., 2671 Executive Center Circle West, Tallahassee, FL 32399-
0681
and
Initial Staffing Services of California, Inc., Attn: The Frick Company, PO Box
66864, St. Louis, MO 63166-6864,

this 03h day of November, 2003.


                                               _________________________
                                               Nadine G. Mendelsohn, Pro Se
                                               1404 Louise Drive SE
                                               Jacksonville, Alabama 36265
                                               (256) 782-3262
CERTIFICATE OF COMPLIANCE


I CERTIFY THAT THIS AMENDED JURISDICTIONAL BRIEF APPENDIX is
in compliance with Rule 9.210 (a) (2) for computer generated briefs. The font used
is Times New Roman 14-point.


                                               _________________________
                                               Nadine G. Mendelsohn, Pro Se
                                               1404 Louise Drive SE
                                               Jacksonville, Alabama 36265
                                               (256) 782-3262

				
DOCUMENT INFO
Description: Florida Unemployment Claim Denied document sample